Saithu and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944** **CRL.MC NO. 5395 OF 2022** **CRIME NO.320/2018 OF Kottappady Police Station, Ernakulam** ## **AGAINST THE ORDER/JUDGMENT SC 259/2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, NORTH PARAVUR / I ADDITIONAL MACT, NORTH PARAVUR** ## **PETITIONER/ACCUSED 1 TO 6:** 1 SAITHU AGED 46 YEARS S/O.PAREETH, THEKEMOLATH HOUSE, PANIPRA KARA,THRIKKARIYOOR VILLAGE,KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN - 686692 2 SALEEM AGED 54 YEARS S/O SAITH,THEKEMOLATH HOUSE, PANIPRA KARA, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN - 686692 3 MUHAMMAD ANWAR AGED 26 YEARS S/O.ALI, THEKEMOLATH HOUSE, PANIPRA KARA, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN - 686692 4 ALI AGED 52 YEARS S/O.PAREETH, THEKEMOLATH HOUSE, PANIPRA KARA,THRIKARIYOOR VILLAGE,KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN – 686692 2 Crl.M.C No.5395 of 2022 5 MANSOOR AGED 29 YEARS S/O SALEEM, THEKEMOLATH HOUSE , PANIPRA KARA,THRIKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN - 686692 6 ABOOBAKKER AGED 61 YEARS S/O PAREETH,PAREKADAN HOUSE, PNIPRA KARA,THRIKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN - 686692 BY ADV T.E.ISMAIL ## **- RESPONDENT/STATE AND CW 1 TO 6:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 HAMEED AGED 50 YEARS S/O. MEERAN,PAKKATTUMOLEL HOUSE, PANIPRA KARA, THRIKARIYOOR VILLAGE,KOTHAMANGALAM TALUK,ERNAKULAM DISTRICT, PIN - 686692 3 MUHAMMED@MAMU AGED 48 YEARS S/O.PAREED,PAKKATTUMOLEL HOUSE, PANIPRA KARA,THRIKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN - 686692 4 MAITHEEN@KUNJUMON AGED 49 YEARS S/O NEENAKUNJU, 3 Crl.M.C No.5395 of 2022 PAKKATTUMOLEL HOUSE, PANIPRA KARA THRIKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN - 686692 5 MOITHU AGED 56 YEARS S/O PAREED,PAKKATTUMOLEL HOUSE, PANIPRA KARA, THRIKARIYOOR VILLAGE, KOTHAMANGALAM TALUK,ERNAKULAM DISTRICT, PIN - 686692 6 ISMAIL AGED 29 YEARS S/O NEENAKUNJU,PAKKATTUMOLEL HOUSE, PANIPRA KARA,THRIKARIYOOR VILLAGE, KOTHAMANGLAM TALUK,ERNAKULAM, PIN - 686692 BY ADV PUBLIC PROSECUTOR **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **19.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 4 Crl.M.C No.5395 of 2022 ## **O R D E R** The petitioners are the accused Nos. 1 to 6 in Crime No.320/2018 of Kottappady Police Station which is now pending as S.C No.259/2019 before the Additional Sessions Court-II, North Paravoor. The offences alleged against the petitioners are punishable under Sections 143, 147, 148, 323, 324, 326, 308 read with Section 149 of Indian Penal Code. 2. The prosecution case is that, on 30.03.2018, at 7.30 p.m, due to the previous animosity and in furtherance of a common object, the petitioner formed into an unlawful assembly armed with dangerous weapons, attacked the respondents 2 to 6 and thereby causing injuries to them. Annexure-1 is the final report submitted by the Police. This Crl.MC is filed for quashing all further proceedings pursuant thereto. 3. Heard Sri.T.E Ismail, the learned counsel appearing for the petitioners, Sri. M.P.Prashanth, the learned Public Prosecutor appearing for the State and Sri. Jai George, the learned counsel appearing for the respondents 2 to 6. 5 Crl.M.C No.5395 of 2022 4. The prayer for quashing the above proceedings is sought for by the petitioners on the ground that, the dispute between the parties has been settled and to substantiate the same, the injured persons have sworn Annexures-2 to 6 affidavits respectively. The aforesaid affidavits indicate that, the matter has been settled and the injured persons have no subsisting grievance against the petitioners herein. They also conveyed that they have no objection in quashing the proceedings against the petitioners herein. The learned counsel for the respondents Nos.2 to 6/injured persons also confirmed the same. The learned Public Prosecutor upon instructions submitted that the veracity of the settlement was verified by the Station House officer concerned and before the SHO also, the injured persons have reiterated that, they do not have any objection in quashing the proceedings as they have no subsisting grievance against the petitioners herein. 5. Going through the materials available on record, it is discernible that, the dispute is basically private in nature and on account of settlement arrived at between the parties, no purpose would be served if the proceedings against the petitioners herein 6 Crl.M.C No.5395 of 2022 were allowed to continue. In such circumstances, the chances of a successful prosecution are very bleak. Therefore, I am of the view that going by the decision in **Gian Singh v. State of Punjab and Another [2012(4) KLT 108],** this is a fit case in which the powers of this Court under Section 482 of the Code of Criminal Procedure can be invoked. 6. It is true that, some of the offences alleged are under Sections 326 and 308 of the Indian Penal Code. However, it is seen from the records that, the incident which is the subject matter of this Crime has stemmed up from a dispute between the parties relating to a pathway. The parties are neighbors as well. In connection with the very same incident, Crime No. 319/2018 is registered by the Kottappady Police Station against the respondents Nos. 2 to 6 herein for the offences punishable under Sections 143, 147, 148, 323, 324, 325, 326, 307 read with Section 149 of Indian Penal Code and the same is now pending as S.C No. 262/2019 before the Additional Sessions Court-II, North Paravoor. The prayer for quashing the proceedings is sought for on the basis of mutual settlement in both these cases. Crl.M.C 5663/2022 is 7 Crl.M.C No.5395 of 2022 filed by the accused persons in Crime No. 319/2018 who are the respondents Nos.2 to 6/injured in this case. It is discernible from the records that, all the disputes between the parties have been settled in mediation with the intervention of neighbors. All of them have expressed their willingness to discontinue the prosecution against each other. It is also brought to my notice that, none of the petitioners or the respondents are having any criminal antecedents. The materials indicate that, the incident occurred, in connection with a civil disputes with regard to the right of a pathway and apparently it was under the heat of passion. Thus considering the entire aspects of the case, I am of the view that, eventhough the offences alleged against each other are serious in nature, the powers of this Court under Section 482 Cr.P.C can be invoked to quash all the said proceedings, so as to ensure the cordial relationship between the parties who are neighbors. In such circumstances, I am inclined to allow this Crl.M.C. Accordingly, this Crl.M.C. is allowed. Annexure-1 final report in Crime No.320/2018 of Kottapady Police Station and all further proceedings in S.C No. 259/2019 pending before the Additional 8 Crl.M.C No.5395 of 2022 Sessions Court-II, North Paravoor as against the petitioners are hereby quashed. Sd/- **ZIYAD RAHMAN A.A JUDGE** rpk 9 Crl.M.C No.5395 of 2022 ## **APPENDIX OF CRL.MC 5395/2022** PETITIONER ANNEXURES Annexure1 THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.320/2018 OF KOTTAPPADY POLICE STATION, PENDING AS S C 259/2019 BEFORE THE HON'BLE ADDITIONAL DISTRICT SESSIONS COURT II AT N.PARAVOOR Annexure2 THE AFFIDAVIT OF THE RESPONDENT NO.2 Annexure3 THE AFFIDAVIT OF THE RESPONDENT NO.3 Annexure4 THE AFFIDAVIT OF THE RESPONDENT NO.4 Annexure5 THE AFFIDAVIT OF THE RESPONDENT NO.5 Annexure6 THE AFFIDAVIT OF THE RESPONDENT NO.6